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Stu Woolman & Henk Botha 157
outweighed the state’s interest in the death penalty for the sake of
retribution and communal catharsis. In purely clinical terms, the
death penalty impaired the right not to be subject to cruel, inhuman
and degrading punishment and could not be justified in terms of IC
section 33.
Sometimes balancing means ‘the striking of a balance’ between
competing rights or interests. No right is asked to pay the ultimate
price. In Minister of Home Affairs v Fourie, same-sex life partners
contended that their rights to equality and to human dignity were
impaired by laws that prevented them from entering into civillysanctioned
marriages. 14 Leaders of religious and traditional
communities contended that the state and the Court had no business
demanding that they alter their beliefs or practices to accommodate
gay and lesbian unions. The Court split the baby and engaged in this
second form of balancing. While acknowledging that the rights of
same-sex life partners to equality and to dignity were unjustifiably
limited by rules of common law and statutory provisions that
prevented them from entering civilly-sanctioned marriages, the
Fourie Court went out of its way to note that religious prohibitions on
gay and lesbian marriage did not constitute an unjustifiable
infringement and that religious officials could legitimately refuse to
consecrate a marriage between members of a same-sex life
partnership.
3.2 Critiques of balancing
3.2.1 Pluralism, incommensurability and complexity
Some critiques suggest that the discourse of balancing of
constitutional rights, values or interests involves terminological
confusion. Other critiques contend that ‘balancing’, in either of the
two forms identified above, is an impossible undertaking. Our critique
targets both the terminological and the theoretical confusion
associated with balancing talk. 15
We do not solely value things in quantitative terms: intensity or
utility. We value things in qualitatively different ways. Furthermore,
human beings generally do not value just one thing in life. Human
14
15
Minister of Home Affairs & Another v Fourie & Another (Doctors for Life
International & Others, Amici Curiae); Lesbian and Gay Equality Project & Others
v Minister of Home Affairs & Others 2006 1 SA 524 (CC), 2006 3 BCLR 355 (CC).
See, eg, M Tushnet ‘An essay on rights’ (1984) 62 Texas Law Review 1363 1372–73;
T Aleinikoff ‘Constitutional law in the age of balancing’ (1987) 96 Yale Law
Journal 943 972-76; S Woolman ‘Out of order? Out of balance? The limitation
clause of the Final Constitution’ (1997) 13 South African Journal on Human Rights
102 114–119.